Chagnon v. Syndicat de la fonction publique et parapublique du Québec,2018 SCC 39 – Constitutional law — Parliamentary privilege — Scope of privilege
On appeal from a judgment of the Quebec Court of Appeal (2017 QCCA 271) setting aside a decision of Bolduc J. (2015 QCCS 883).
Three security guards employed by the National Assembly of Québec were dismissed by the President of the National Assembly for using their employer’s cameras to observe activities inside nearby hotel rooms. Their union grieved their dismissals before a labour arbitrator. The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the legislative assembly. The arbitrator concluded that the dismissals were not protected by either parliamentary privilege, and therefore that the grievances could proceed. The reviewing judge agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, but found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. A majority of the Court of Appeal held that the arbitrator had correctly concluded that the dismissals were not protected by parliamentary privilege.
Held (7-2): The appeal should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.:The dismissals are not protected by parliamentary privilege and therefore are not immune from external review under the applicable labour relations regime. Although the President is entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, parliamentary privilege does not insulate the President’s decision from review under the labour regime to which the guards are subject.
Legislative bodies in Canada, including provincial legislative assemblies, have inherent parliamentary privileges that flow from their nature and function in a Westminster model of parliamentary democracy. Inherent parliamentary privileges help preserve the separation of powers and promote the proper functioning of representative democracy, by protecting some areas of legislative activity from external review. However, the inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored to its rationale. It is the role of the courts to determine whether a category of parliamentary privilege exists and to delimit its scope, whereas it is for the legislative assemblies to determine whether in a particular case the exercise of the privilege is necessary or appropriate. The scope of parliamentary privilege is delimited by the purposes it serves, and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business. Because courts cannot review the exercise of parliamentary privileges, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by a privilege does not exceed its purpose. Therefore, a purposive approach must be taken when assessing parliamentary privilege claims. Such an approach helps to reconcile the privilege with the Charter, by ensuring that it is only as broad as is necessary for the proper functioning of a constitutional democracy.
The party seeking to rely on the immunity from external review conferred by parliamentary privilege bears the burden of establishing its necessity, that is, to demonstrate that the scope of the protection it claims is necessary in light of the purposes of parliamentary privilege. The necessity test demands that the sphere of activity over which the privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role.
In this case, the standard of review applicable to the decision of the arbitrator is correctness. The arbitrator correctly concluded that the President’s decision to dismiss the security guards is not subject to parliamentary privilege. First, the President has failed to establish the necessity of a parliamentary privilege over the management of the guards. Admittedly, the guards perform some important tasks that are connected to the constitutional functions of the National Assembly, including protecting it from security threats and helping to maintain decorum in the chamber. However, the National Assembly does not require immunity from outside scrutiny of the general management of the security guards in order to discharge its constitutional functions. The management of the guards could be dealt with under ordinary law without impeding the National Assembly’s security or its ability to legislate and deliberate. Permitting the enforcement of basic employment and labour protections for the guards would not undermine the independence required for the National Assembly to fulfil its constitutional mandate with dignity and efficiency.
The question of necessity can be addressed without looking to the Act Respecting the National Assembly (“ARNA”). However, while nothing in the legislation abrogates parliamentary privilege, the ARNA establishes that all employees of the National Assembly are managed in accordance with general law. Sections 110 and 120 of the ARNA provide that the employees of the National Assembly are members of the civil service and, as such, are generally subject to a labour relations regime unless they are exempted by regulation. As there is currently no regulatory exemption for the security guards, this demonstrates that the National Assembly does not appear to view exclusive control over their management to be necessary to its autonomy.
As for the parliamentary privilege to exclude strangers, while the existence of this privilege has long been recognized, it is not necessary to a legislative assembly’s ability to perform its constitutional functions that the scope of the privilege be drawn so broadly as to include the decision to dismiss employees who implement it on the president or speaker’s behalf. Such an immunity would impact persons who are not members of the legislative assembly, and undermine their access to the labour regime negotiated in accordance with their s. 2(d) Charter rights. The President has not shown that the application of general labour law to those persons would jeopardize the autonomy, dignity and efficiency required for the fulfilment of the National Assembly’s legislative mandate. Accordingly, the privilege to exclude strangers does not protect the decision to dismiss employees who exercise the privilege from review.
Per Rowe J.: There is agreement that the standard of review is correctness and agreement with the majority that the appeal should be dismissed but for different reasons. Whatever the scope of privilege for management of employees, the Act Respecting the National Assembly (“ARNA”) resolves this case. When a legislative body subjects an aspect of privilege to the operation of a statute, it is the provisions of the statute that govern. While those provisions remain operative, a legislative body cannot reassert privilege so as to do an end-run around the statute whose very purpose is to govern the legislature’s operations. Parliamentary privilege should not be invoked to bypass the application of a statute enacted by the legislature to govern its own operation. It is not an impediment to the functioning of the legislature for it to comply with its own enactments, and it cannot be regarded as an intrusion on the legislature’s privilege.
The relationship between statute and privilege is determined through ordinary principles of statutory interpretation. In this case, in the ARNA, the National Assembly has defined how the management of its employees is to be carried out under the public service employment scheme. If the National Assembly wants a group of employees to be removed from this scheme, it can do so through the derogation procedure referred to in s. 120 of the ARNA. Privilege would then again operate, provided that the employees fell within the scope of privilege.
As the derogation procedure under s. 120 has not been exercised in this case with respect to the security guards, the President cannot now reassert privilege as to the management of the guards, and thereby insulate the decision to dismiss them from the scrutiny of the grievance arbitrator. It would be contrary to the decision of the National Assembly set out in the ARNA for the President to exercise authority over the management of employees on a case by case basis, nominally in the exercise of privilege. Accordingly, the arbitrator did not err in determining that he could hear the grievances.
Per Côté and Brown JJ. (dissenting): There is agreement with the majority that the applicable standard of review is correctness because the existence and scope of parliamentary privileges raise a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. The correctness standard also applies because the existence and scope of parliamentary privileges raise a constitutional issue.
However, there is disagreement with the majority’s disposition of this appeal. The parliamentary privileges at issue defeat the grievance arbitrator’s jurisdiction. The appeal should therefore be allowed and the grievances dismissed.
The jurisdiction of the courts with respect to parliamentary privileges is narrow — they can only ascertain the existence and scope of such privileges. They must give considerable deference to the view taken by legislative assemblies and their speakers or presidents of the scope of autonomy they consider necessary to fulfill their functions. The courts must rely on the necessity test to ascertain the existence and scope of privileges. This test is concerned with a sphere of the legislative body’s activity that will be excluded from the ordinary law. The onus is on the legislative assembly to show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. In the analysis of the necessity test, the sphere of activity must not be carved up — the analysis must not focus on each employee’s specific tasks, but rather on the sphere of activity and the category of employees. Once the courts have found that the sphere of activity and the category of employees are necessary to the proper functioning of the legislative assembly, the inquiry ends, since the privilege has been established. There is thus no need to consider whether grievance arbitration may interfere with the proper functioning of the assembly or jeopardize the dignity of the institution.
Security is one of the spheres of activity necessary to proceedings in an assembly. In a parliamentary democracy, there can be no free debate without security. In order for any legislative assembly to perform its constitutional functions with dignity and efficiency, it is essential that it operate in a secure environment. Security is therefore a sphere of activity that is protected by absolute parliamentary privileges. All decisions relating to security fall within this sphere of activity, including all tasks performed by an assembly’s security guards.
This case lies at the intersection of the two privileges claimed. All of the tasks performed by the security guards employed by the Assembly fall within a sphere of activitythat is necessary to the proper functioning of the Assembly, namely security. This is enough in itself to establish the management privilege. In addition, the guards exercise, in particular, the privilege to exclude strangers on the President’s behalf. Employees to whom the exercise of a recognized parliamentary privilege is delegated necessarily perform a function that is closely and directly connected with the Assembly’s activities. The connection required to ground a management privilege will therefore be established where it is shown that a category of employees exercises or participates in exercising a parliamentary privilege that is recognized and necessary. Accordingly, the labour relations of such employees fall within the scope of the privilege over the management of employees, and a decision concerning their dismissal is made in the exerciseof this privilege. The dismissal of an employee to whom a privilege has been delegated is the ultimate exercise of the management privilege. To preserve the integrity of the privileges of the Assembly and its members, the President must be able to manage the employees who exercise these privileges without having his or her decisions called into question. The courts cannot dictate to the Assembly how it must go about ensuring the security of its members within its walls by forcing it to employ people the President no longer trusts. If a grievance arbitrator could review the President’s decision to terminate the guards’ employment, this would mean that part of the exercise of the President’s own duties becomes de facto reviewable by a court or tribunal and therefore that the Assembly would lose control over decisions concerning its security.
The privileges claimed in this case were not abolished with the coming into force of the ARNA, and the Assembly did not waive its privilege in relation to the employees concerned by enacting this statute. The courts must respect the view taken by a speaker or president of a statute dealing with the internal affairs of a legislative assembly. The interpretation proposed by the President of the Assembly must therefore be given predominant weight in determining whether the Assembly intended to limit its privileges.
The ARNA governs the internal affairs of the Assembly, which are outside the scope of the courts’ jurisdiction. The preamble to the ARNA recognizes that the Assembly must protect its proceedings from all interference. Section 110 of the ARNA states that the Assembly shall continue to be managed within the scope of the Acts, regulations and rules applicable. Except in cases where the Assembly has expressly provided otherwise, the Acts, regulations and rules of the ordinary law have never applied to a sphere of activity that is subject to parliamentary privileges. The ordinary law that continues to apply to the Assembly is thus necessarily defined by privilege, which has been a constant in Canada’s constitutional history.
Section 120 of the ARNA deals with the power of the Office of the Assembly to exclude categories of employees from the personnel of the civil service and with the management powers granted to the Secretary General, but it does not mention the President’s privileges. It is not clear that this provision implicitly abolishes the privilege over the management of the Assembly’s employees by incorporating them into the public service or that it partially withdraws the privilege to exclude strangers from the President. Given that the Court has recognized that parliamentary privileges have constitutional status, the statute must be interpreted in such a way that it does not implicitly abrogate these privileges. It is undesirable to adopt an interpretation to the effect that the Assembly implicitly considers a privilege unnecessary, thereby denying its existence. More is needed to abrogate a constitutional privilege. Without requiring express language in the ARNA, the modern approach to statutory interpretation does require clear, unequivocal legislative intent to abolish or modify parliamentary privileges that are still necessary. In the end, the ARNA does not have the effect of limiting the privileges held by the President, who may assert them when deemed necessary, and courts and tribunals cannot assume jurisdiction without a clear indication that the Assembly has conferred it on them. Interference by courts or tribunals would be inconsistent with the Assembly’s sovereignty.
Reasons for judgment: Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Gascon and Martin JJ. concurring)
Concurring Reasons: Rowe J.
Joint Dissenting Reasons: Côté and Brown JJ.
Neutral Citation: 2018 SCC 39
Docket Number: 37543